12-307 Brief for United States Senators Orrin G. Hatch, Saxby Chambliss, Et Al

7/29/2019 12-307 Brief for United States Senators Orrin G. Hatch, Saxby Chambliss, Et Al.

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No. 12-307

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THE

Supreme Court of the United States

UNITED STATES OFAMERICA,Petitioner,

v.

EDITH SCHLAIN WINDSOR, ANDBIPARTISAN LEGALADVISORYGROUP OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,Respondents.

On Writ of Certiorari to the

United States Court of Appealsfor the Second Circuit

BRIEF ON THE MERITS OFAMICI CURIAE UNITED STATES SENATORS

ORRIN G. HATCH, SAXBY CHAMBLISS,DAN COATS, THAD COCHRAN, MIKE CRAPO,

CHARLES GRASSLEY, LINDSEY GRAHAM,

MITCH McCONNELL, RICHARD SHELBYAND ROGER WICKER IN SUPPORT OF

RESPONDENT THE BIPARTISANLEGAL ADVISORY GROUP OF THE

U.S. HOUSE OF REPRESENTATIVES

MICHAEL L.STERNCounsel of Record

8529 Century Oak CourtFairfax Station, Va. 22039

(703) [email protected]

Counsel for Amici Curiae

January 29, 2013


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(i)

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ................................ ii

INTEREST OFAMICI CURIAE ........................ 1

INTRODUCTION AND SUMMARY OF THEARGUMENT ........................................................ 2

A. Passage of DOMA ....................................... 2

B. The Windsor Litigation .............................. 6C. Amicis Argument ....................................... 8

ARGUMENT ........................................................ 10

I. Ample Federal Interests Supported theEnactment of DOMA ................................ 10

A. Pre-DOMA federal law did notrecognize same-sex marriages ............ 11

B. Section 3 of DOMA promotes a sig-

nificant government interest inuniformity and certainty in theapplication of federal law .................... 16

C. Section 3 of DOMA protects theability of states to preserve tradi-tional marriage .................................... 21

II. Support for Traditional Marriage is notUnconstitutional Animus ...................... 23

CONCLUSION .................................................... 30


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ii

TABLE OF AUTHORITIESCASES Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D.Cal. 1980), affd 673 F.2d 1036 (9th Cir.1982).............................................................. 12-13

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .. 2, 3, 5, 16

Burnet v. Harmel, 287 U.S. 103 (1932) ........... 19

Dean v. District of Columbia, 653 A.2d 307(D.C. 1995) .................................................... 13

Eccles v. Commr, 19 T.C. 1049, affd, 208F.2d 796 (4th Cir. 1953), nonacq. with-drawn, acq. 1957-2 C.B. 3 (1953) ................. 14

Fleming v. Nestor, 363 U.S. 603 (1960) ........... 26

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) .. 27

Godfrey v. Spano, 13 N.Y.3d 358 (2009) ......... 21

In re Marriage Cases, 183 P.3d 384 (Cal.2008).............................................................. 24

Lawrence v. Texas, 539 U.S. 558 (2003) .......... 10, 28Lyeth v. Hoey,305 U.S. 188 (1938).................. 19

Massachusetts v. U.S. Dept of HHS, 682F.3d 1 (1st Cir. 2012) .................................... 28, 29

Murphy v. Ramsey, 114 U.S. 15 (1885) ........... 13

Perry v. Brown, 671 F.3d 1052 (9th Cir.2012).............................................................. 24, 25

Romer v. Evans, 517 U.S. 620 (1996) ......... 24, 25, 26

Sosna v. Iowa, 419 U.S. 393 (1975) ................. 15

U.S. Dept of Agric. v. Moreno, 413 U.S. 528(1973) ............................................................ 25, 26


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iii

TABLE OF AUTHORITIESContinuedPage(s)

United States v. Constantine, 296 U.S. 287(1935) ............................................................ 28

Windsor v. United States, 699 F.3d 169 (2dCir. 2012) ..................................................... 6, 7, 24

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................ 7, 9, 24, 30

U.S. Const. amend. XIV, 1 ............................ 29

U.S. Const. art. IV, 1 ..................................... 4

STATUTES

26 U.S.C. 2056(a) .......................................... 6, 13

26 U.S.C. 6013 ............................................... 13-14

28 U.S.C. 530D .............................................. 6

38 U.S.C. 101(31) .......................................... 13

42 U.S.C. 416(b) ............................................ 13

Defense of Marriage Act, 2, 28 U.S.C. 1738C .................................................... 2, 5, 9, 22

Defense of Marriage Act, 3, 1 U.S.C. 7 .....passim

Haw. Rev. Stat. Ann. 572B (West 2013) ...... 21

Revenue Act of 1948, Pub. L. No. 80-471, 62Stat. 110 (1948) ............................................ 19-20

OTHER AUTHORITIES

2 Joseph Story, Commentaries on theConstitution of the United States (1st ed.1833).............................................................. 27


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iv

TABLE OF AUTHORITIESContinuedPage(s)

32 Weekly Comp. Pres. Doc. (Sept. 30, 1996) .. 2

142 Cong. Rec. 16796 (1996) ............................ 12

142 Cong. Rec. 17076 (1996) ............................ 12

142 Cong. Rec. 17094 (1996) ............................ 2

142 Cong. Rec. 22446 (1996) ............................ 12

142 Cong. Rec. 22452 (1996) ............................ 29

142 Cong. Rec. 22459 (1996) ............................ 16

142 Cong. Rec. 22467 (1996) ............................ 2, 29

142 Cong. Rec. 23186 (1996) ............................ 12

The American Heritage Dictionary (2d ed.1985).............................................................. 15, 18

Blacks Law Dictionary (5th ed. 1979) ....... 12, 14, 18

Defense of Marriage Act: Hearing on H.R.3396 Before the Subcomm. on the Con-

stitution of the H. Comm. on the Judiciary,104th Cong. (1996) .......................... 4, 5, 16, 17, 18

The Defense of Marriage Act: Hearing onS. 1740 Before the S. Comm. on theJudiciary, 104th Cong. (1996) ....................passim

Employment Nondiscrimination Act of 1995,S. 932, 104th Cong. (1995) ........................... 29

H.R. Rep. No. 104-664 (1996), reprinted in1996 U.S.C.C.A.N. 2905 .............................. 3, 5, 12

Letter from Eric H. Holder, Jr., Atty Gen.,to Hon. John A. Boehner, Speaker, U.S.House of Representatives (Feb. 23, 2012) ... 6


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v

TABLE OF AUTHORITIESContinuedPage

Revenue Act of 1948, S. Rep. No. 80-1013(1948), reprinted in 1948 U.S.C.C.A.N.1163 .......................................................... 14, 20, 23

Staff of Joint Comm. on Taxation, 97thCong., Background and Description of

Administration Proposal Relating toEstate and Gift Taxes (Joint Comm. Print1981).............................................................. 14

U.S. Gen. Accounting Office, GAO-04-353R,Defense of Marriage Act (Jan. 23, 2004) ..... 11

Websters Third New International Dic-tionary (3d ed. 1986)................................ 12, 14, 18


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INTEREST OFAMICI CURIAE

1

Amici Orrin G. Hatch, Saxby Chambliss, Dan

Coats, Thad Cochran, Mike Crapo, Charles Grassley,

Lindsey Graham, Mitch McConnell, Richard Shelby

and Roger Wickerare sitting United States Senators

who served in the 104th Congress House or Senate

and voted for passage of the Defense of Marriage Act

(DOMA) in 1996. As such, they have an interest in

the constitutionality of Section 3 of DOMA, which

defines the terms marriage and spouse for pur-

poses of federal law, and in informing the Court ofthe important government interests that it was

enacted to serve.

One of the Amici, Senator Orrin G. Hatch, chaired

the Senate Judiciary Committee, which had jurisdic-

tion over the DOMA legislation. In considering

DOMA in 1996, the committee heard from witnesses

regarding the potential recognition of same-sex

marriage by the highest court in the State of Hawaii

and the impact that this would have on federal law.

The committee also heard testimony from constitu-

tional scholars supporting the constitutionality of

DOMA,2

1Written consent to the filing of this brief has been received

from all parties and filed with the Clerk of the Court. No

counsel for a party authored this brief in whole or in part, and

no person, other than Amici and their counsel, made any mone-

tary contribution to the preparation or submission of this brief.

and Senator Hatch received written assur-

2Two witnesses, Professor Lynn D. Wardle and Mr. David

Zweibel, testified that Section 3 of DOMA, which is at issue in

this case, was clearly within Congresss constitutional power.

The Defense of Marriage Act: Hearing on S. 1740 Before theS. Comm. on the Judiciary, 104th Cong. 37-39, 54 (1996) (Senate

Hearing). Another witness, Professor Cass R. Sunstein, testi-

fied in opposition to DOMA; however, Professor Sunsteins


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2

ance from the Department of Justice that it saw noconstitutional infirmity in the statute.3

Amici are particularly concerned that the Depart-

ment of Justice, having repeatedly assured Congress

of DOMAs constitutionality during the legislative

process, now seeks to have the law judicially invali-

dated. If the Department believed that there was an

inadequate federal interest to justify DOMA, the time

to speak was in 1996, when Congress gave careful

consideration to the need for DOMA. Rather than

urging the courts to give appropriate deference to anAct of Congress, as befits its proper role in our

system of government, the Department now ground-

lessly impugns the motives of the overwhelming

bipartisan majority that supported DOMA.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

A. Passage of DOMA. DOMA was enacted in 1996

after passing each house of Congress with more than

80% of the votes in favor, an overwhelming and

bipartisan majority.4

The enactment of DOMA was in large part a direct

legislative response to Baehr v. Lewin,

President Clinton signed DOMA

into law on September 21, 1996. 32 Weekly Comp.

Pres. Doc. 1891 (Sept. 30, 1996).

5

testimony related solely to Section 2, and he noted that he did

not believe that Section 3 was unconstitutional.Id. at 44 n.1.

a 1993 deci-

3Senate Hearing at 2.

4The House approved the bill by a vote of 342-67, while the

Senate passed it by a vote of 85-14. 142 Cong. Rec. 17094, 22467(1996).

5852 P.2d 44 (Haw. 1993).


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sion of the Hawaii Supreme Court. The Baehr deci-sion had found that denials of marriage licenses to

same-sex couples were subject to strict scrutiny

under the Hawaii Constitution, and it had remanded

the case to the lower courts to determine whether the

state could meet that burden. At the time Congress

considered DOMA, it appeared that the Hawaii

courts were on the verge of requiring that State to

issue marriage licenses to same-sex couples. H.R.

Rep. No. 104-664, at 2 (1996), reprinted in 1996

U.S.C.C.A.N. 2905, 2906 (House Report).

Congresss concern was not with Hawaiis marriage

laws. See House Report at 5 (House Judiciary Com-

mittee expresses no opinion on the propriety of the

ruling in Baehr). Instead, Congress was concerned

with the impact that recognition of same-sex

marriage in one or more states would have on other

states and on the federal government. House Report

at 6-7. The likely effects were explored in hearings

held before the House and Senate Judiciary Commit-

tees, which showed (1)Baehr was merely one facet of

an organized litigation strategy designed to securenationwide recognition of same-sex marriage;

6

6At a May 15, 1996 hearing before the House Judiciary Sub-

committee on the Constitution, a 23-page memorandum from

the Lambda Legal Defense and Education Fund, Inc. (LLDEF)

was placed into the record. This memorandum laid out a

strategy for using the expected legal victory in Hawaii to obtain

recognition of same-sex marriages in other states and by the

federal government:

and (2)

Many same-sex couples in and out of Hawaii are likely to

take advantage of what would be a landmark victory. Thegreat majority of those who travel to Hawaii to marry will

return to their homes in the rest of the country expecting

full legal recognition of their unions. Despite a powerful


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legal experts, both for and against DOMA, agreedthat recognition of same-sex marriage in one or

more states would likely have unpredictable and

inconsistent legal impacts on other states and the

federal government.7

cluster of expectations, logistics, rights, constitutional obli-

gations, and federalist imperatives, these questions are

likely to arise: Will these peoples validly-contracted

marriages be recognized by their home states and the

federal government, and will the benefits and responsibili-

ties that marriage entails be available and enforceable inother jurisdictions?

Indeed, same-sex marriage ad-

We at Lambda believe that the correct answer to these

questions is Yes.

Defense of Marriage Act: Hearing on H.R. 3396 Before the

Subcomm. on the Constitution of the H. Comm. on the Judiciary,

104th Cong. 15 (1996) (House Hearing) (emphasis added).7For example, Professor Michael W. McConnell of the Univer-

sity of Chicago Law School opined that it was not unlikely that

couples who entered into same-sex marriages in Hawaii would

be entitled to legal recognition in other states under the Full

Faith and Credit Clause, U.S. Const. art. IV, 1, although he

allowed that it was not certain and [i]t is possible that stateswith laws against same-sex unions will be able to resist

recognition of these marriages under the so-called public-policy

exception. Senate Hearing at 57. Professor Cass R. Sunstein,

also of the University of Chicago Law School, thought it was

unlikely that the Full Faith and Credit Clause would require

the recognition of out-of-state marriages, but he acknowledged

that it was not clear how this traditional view could be

squared with the language of the clause. Id. at 44-45. All legal

experts agreed that if the public policy exception applied, it

would mean varying results in different states.

As Professor Lynn D. Wardle of Brigham Young University,

an expert in family law, testified: [T]his is the kind of issuethat is best resolved before the cases arise. Waiting until after

some state legalizes same-sex marriage and a flood of cases are

filed demanding that same-sex unions formed in such as state


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vocates hoped to use the legal and practical night-mare created by this situation to generate pressure

for uniform nationwide recognition of same-sex mar-

riages. See House Hearing at 19. The House Judici-

ary Committee thus described Baehr as part of an

orchestrated legal assault being waged against

traditional heterosexual marriage. Supp. App. 37a

(quoting House Report at 2-3).

To address these problems, DOMA has two simple

provisions. Section 2, 28 U.S.C. 1738C, provides a

uniform national rule under which states may, butare not required to, recognize same-sex marriages

entered into in other states. Section 3, which is

at issue in this case, defines, for purposes of federal

law, the terms marriage as mean[ing] only a legal

union between one man and one woman as husband

and wife and spouse as referring only to a person

of the opposite sex who is a husband or wife. 1

U.S.C. 7.

By adopting Section 3, Congress sought to avoid

the federal government having to litigate, on a

statute by statute and state by state basis, whether

(a) federal law provided benefits for same-sex

marriages that were valid under state law and if so,

(b) the particular marriage in question was valid

under state law. As Professor Lynn Wardle testified

before the Senate Judiciary Committee, Section 3

eliminates what could be a lot of very messy and

be treated as marriages for purposes of federal laws would

be very unwise. It would invite a multitude of unnecessary

litigation, and create confusion, inconsistency, and unfairness.Different courts in different districts and circuits might reach

contradictory conclusions adding to the uncertainty. Id. at 33-

34.


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costly litigation for the federal government. SenateHearing at 34.

B. The Windsor Litigation. Respondent Edith

Windsor and Thea Clara Spyer were issued a cer-

tificate of marriage in Canada in 2007. Ms. Windsor

resided in New York at the time of Ms. Spyers death

in 2009. In 2010, she commenced this action against

the United States, claiming Section 3 of DOMA

unconstitutionally denied her the benefit of the

marital estate tax deduction, 26 U.S.C. 2056(a).

Windsor v. United States, 699 F.3d 169 (2d Cir.2012), reproduced in the Appendix to the Supple-

mental Brief for the United States (Supp. App.) at

1a-2a.

The United States defended the case until Febru-

ary 23, 2011, when Attorney General Holder in-

formed Congress, pursuant to 28 U.S.C. 530D,8

8This statute requires the Attorney General to provide notice

to designated congressional officials, including the Senate and

House leadership, the chairs and ranking members of the

Senate and House Judiciary Committees, the Senate LegalCounsel and the General Counsel of the House, when the

Department of Justice refuses to defend the constitutionality of

a federal statute.

the Department of Justice would no longer defend the

constitutionality of DOMA. See Letter from the

Hon. Eric H. Holder to the Hon. John A. Boehner

(Feb. 23, 2011), reproduced in the Joint Appendix

(J.A.) at 183. Among the reasons assigned by the

Attorney General for this abrupt and unprece-

dented, Supp. App. 36a, change of position was

the claim that DOMAs legislative record contains

numerous expressions reflecting moral disapproval of

gays and lesbians and their intimate and family


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7

relationships precisely the kind of stereotype- basedthinking and animus the Equal Protection Clause is

designed to guard against. J.A.191.

Following the Attorney Generals announcement,

the Department of Justice switch[ed] sides to advo-

cate that the statute be ruled unconstitutional in

Windsor. Supp. App. 4a. The Bipartisan Legal

Advisory Group of the U.S. House of Representatives

(BLAG) intervened to conduct the defense of the

statute.

The district court granted summary judgmentin favor of Ms. Windsor, holding that Section 3 of

DOMA violated equal protection because it was sup-

ported by no rational basis. Supp. App. 3a. On

appeal, the Second Circuit affirmed. The panel first

held that Ms. Windsor had standing because it

predicted that New York courts would recognize her

Canadian marriage in 2009, although New York itself

did not license same-sex marriages until 2011. Id. at

7a.

On the merits, a majority of the Second Circuitpanel declined to consider whether Section 3 ofDOMA satisfies rational basis review. Id. at 14a.Instead, it applied intermediate scrutiny and foundSection 3 unconstitutional because BLAG could notoffer an exceedingly persuasive justification for it.

Id. at 26a. Dissenting on the merits, Judge Straubfound that rational basis review should be appliedand that Section 3 satisfied this standard for at leasttwo reasons: (1) it promotes traditional marriage,which furthers a legitimate government interest in

encouraging responsible procreation and childrearingand (2) it promotes the federal interest in preservingthe uniformity of federal law and maintaining the


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status quo with respect to the definition of marriage.Supp. App. 76a-77a.

C. Amicis Argument. In this brief Amici explain anumber of significant federal interests underlyingDOMA. Although there are important interestsserved by DOMA, such as preserving the connectionbetween marriage and procreation, which also under-lie the decision of states to preserve the traditionaldefinition of marriage as between one man and onewoman, our focus here is on specifically federal inter-ests that were considered and explained throughoutDOMAs legislative history, but were ignored,misunderstood, or summarily dismissed below:

Pre-DOMA federal law did not recognizesame-sex marriages. Rather than dramati-cally changing federal law, as the SecondCircuit majority assumed, Section 3 merelyclarified and re-affirmed the existing federaldefinition of marriage. It is apparent, forexample, that the pre-DOMA marital estatetax deduction at issue in this case did not

apply to same-sex couples.

Section 3 of DOMA promotes a significantgovernment interest in uniformity and cer-

tainty in the application of federal law. As the

legislative history of DOMA amply substanti-

ates, efforts to obtain judicial recognition of

same-sex marriage at the state level, as was

occurring in Hawaii at the time, posed a

unique and unprecedented threat to the

stability and uniformity of federal law. In

enacting DOMA, Congress responded to this

challenge by preserving the status quo with


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respect to non-recognition of same-sex mar-riage at the federal level, thereby averting

state by state and statute by statute litigation

seeking federal benefits, and the likelihood of

inconsistent and unfair results.

By taking away the incentive of federal bene-fits, Congress protected the ability of states to

preserve traditional marriage. Section 2 of

DOMA recognizes the authority of each

state to decide for itself whether to recognize

same-sex marriage. If federal benefits wereavailable for same-sex couples validly married

under state law, however, federal law would

serve as an incentive for state recognition of

same-sex marriage, either by legislative or

judicial action. By re-affirming that the federal

definition of marriage does not include same-

sex unions, Section 3 ensured that federal

benefits will not be used to undermine

traditional marriage at the state level.

In addition, Amici respond to the argument thatDOMA violates equal protection because it was

allegedly motivated by unconstitutional animus.

Notwithstanding the Attorney Generals belated dis-

covery of DOMAs allegedly unconstitutional motiva-

tion, this argument is flawed because legislative

motivation is not a basis for setting aside a federal

statute supported by legitimate and rational govern-

ment interests. This Courts precedents do not sup-

port evaluating the constitutionality of a federal

statute based on subjective characterizations of the

motives of individual legislators. In any event,support for traditional marriage cannot be equated to

animus, as Justice OConnor observed in her con-


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currence in Lawrence v. Texas, 539 U.S. 558, 585(2003). It would be particularly inappropriate to

invalidate DOMA based on the alleged motivations of

individual supporters, given that the statute was

passed with overwhelming bipartisan support and

signed into law by President Clinton.

Amici therefore respectfully urge this Court to

reverse the judgment of the court below, and uphold

the constitutionality of Section 3 of DOMA.

ARGUMENT

I. Ample Federal Interests Supported the

Enactment of DOMA

The Second Circuit rejected all of the proffered

justifications for DOMA, finding that BLAG failed to

meet the burden of establishing an exceedingly per-

suasive rationale for the law.9

9The Second Circuit applied intermediate scrutiny as the

standard of review, implicitly conceding that it would be diffi-

cult to justify striking down DOMA under a rational basis

standard. Supp. App. 14a (court decline[s] to take issue with

the dissent, which explains why Section 3 of DOMA may

withstand rational basis review). Although Amici

stronglybelieve that rational basis is the appropriate standard of review,

we address here the interests advanced by DOMA, rather than

the standard of review to be applied.

Supp. App. 26a. The

courts conclusion was based in part on the following

premises: (1) that pre-DOMA federal law recognized

same-sex marriages for purposes of federal benefits

to the extent such marriages were valid under statelaw; (2) that Congress had no substantial interest in

promoting uniformity in the application of federal

law; and (3) that there was no connection between


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Section 3 of DOMA and Congresss interest in pre-serving a traditional definition of marriage. As dis-

cussed below, each of these premises is demonstrably

incorrect.

(A). Pre-DOMA federal law did not recognize same-

sex marriages. The court below asserted that Windsor

was denied the benefit of the spousal deduction * * *

solely because [of] Section 3 of the Defense of

Marriage Act * * *. Supp. App. 2a. The logical impli-

cation of this assertion is that absent the passage of

DOMA, Windsor would have been entitled to claimthe spousal deduction. The court, however, makes

virtually no effort to substantiate this proposition.

As of the enactment of DOMA, there were 1,049

federal statutory provisions in which benefits, rights

and privileges were contingent on marital status or

in which marital status was a factor.10

The legislative history of DOMA makes clear Con-

gresss understanding that Section 3 merely clarified

and restated the existing definition of marriage in

federal law in response to the fact that the Hawaiian

courts were on the verge of recognizing a right to

When these

provisions were enacted, same-sex marriage was not

recognized in any state, and Congress clearly did not

contemplate that the term marriage in these stat-

utes would encompass same-sex unions. As the dis-

sent below observed, [t]he history of federal legisla-

tion in respect of the meaning of marriage or spouse

was never even suggested to mean anything other

than the lawful union of one man and woman for all

federal purposes. Supp. App. 34a.

10See U.S. Gen. Accounting Office, GAO-04-353R, Defense of

Marriage Act 1 (Jan. 23, 2004).


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same-sex marriage under that states constitution.See House Report at 10 (Until the Hawaii situation,

there was never any reason to make explicit what has

always been implicitnamely, that only heterosexual

couples could get married.); id. ([T]he Committee

believes that it can be stated with certainty that none

of the federal statutes or regulations that use the

words marriage or spouse were thought by even a

single Member of Congress to refer to same-sex

couples); 142 Cong. Rec. 22446 (1996) (Sen. Byrd)

(We are not overturning the status quo in any way,

shape or form. On the contrary, all this bill does isreaffirm for purposes of Federal law what is already

understood by everyone.); id. at 23186 (Sen. Dorgan)

(For thousands of years, marriage has been an

institution that represents a man and a woman, and

I do not support changing the definition of marriage

or altering its meaning.); id. at 16796 (Rep. McInnis)

(If we look at any definition, whether its Blacks Law

Dictionary, whether it is Websters Dictionary, a

marriage is defined as [a] union between a man and

woman * * *.); id. at 17076 (Rep. Canady) (all weare doing * * * is reaffirming what everyone has

always understood by marriage, what everyone has

always understood by the term spouse).

Congresss understanding of pre-DOMA law was

entirely reasonable and supported both by judicial

authority11

11See Adams v. Howerton,673 F.2d 1036, 1039 (9th Cir. 1982)

(holding, for purposes of federal immigration laws applying to

the spouse of a U.S. citizen, that a same-sex marriage, eventhough allegedly valid under state law, would not be a mar-

riage within the meaning of federal law); Adams v. Howerton,

486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (Congress, as a matter

and by expert testimony received during


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the legislative process.

12

That pre-DOMA federal law embraces the tradi-

tional understanding of marriage can be seen

plainly by looking at the language of particular

statutes.

No evidence has been ad-vanced to suggest that the terms marriage or

spouse encompassed same-sex unions before DOMA

was enacted, either as a matter of ordinary language

or as a matter of technical statutory usage.

13

of federal law, did not intend that a person of one sex could be a

spouse to a person of the same sex for immigration law

purposes), affd 673 F.2d 1036 (9th Cir. 1982); Dean v. District

of Columbia, 653 A.2d 307, 314 (D.C. 1995) (For purposes of

District of Columbias marriage statute, marriage is limited to

opposite-sex couples.); see also Murphy v. Ramsey, 114 U.S. 15,

44 (1885) (referring to the idea of the family, as consisting in

and springing from the union for life of one man and one womanin the holy estate of matrimony [as] the sure foundation of all

that is stable and noble in our civilization).

Most significantly for the present case, it

is apparent that a surviving spouse entitled to a

deduction for federal estate taxes under 26 U.S.C. 2056(a) is the survivor of the husband and wife

entitled to file a joint tax return under 26 U.S.C.

12Professor Wardle testified before the Senate Judiciary Com-

mittee: [I]f some state legalizes same-sex marriage, that would

radically alter a basic premise upon which the presumption of

adoption of state domestic relations law was basednamely the

essential fungibility of the concepts of marriage from one state

to another. Section 3 clarifies the premise upon which two

centuries of federal legislation using marriage terms has been

predicated. Senate Hearing at 27 n.4.13See, e.g., 42 U.S.C. 416(b) (For Social Security Act a wife

means the wife of an individual, but only if she * * * is the

mother of his son or daughter [or] was married to him * * *)

(emphasis added); 38 U.S.C. 101(31) (For purposes of veterans

benefits, spouse means a person of the opposite sex).


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14

6013.

14

The legislative history of the marital estatetax deduction likewise confirms that the deduction

was understood to apply to the surviving spouse of a

marriage consisting of one man and one woman.15

This was entirely consistent with the ordinary mean-

ing of the word marriage at all relevant times.16

14

For example, in Eccles v. Commr, 19 T.C. 1049, 1053-054,

affd, 208 F.2d 796 (4th Cir. 1953), nonacq. withdrawn,, acq.

1957-2 C.B. 3 (1957), a case cited by the Second Circuit, see

Supp. App. 5a, the Tax Court noted the inconsistency thatwould arise if the determination of whether a couple was

husband and wife for purposes of filing joint tax returns were

different than the determination of whether they were married

for purposes of taking the marital estate tax deduction.15See, e.g., Staff of Joint Comm. On Taxation, 97th Cong.,

Background and Description of Administration Proposal Relat-

ing to Estate and Gift Taxes 32 (Joint Comm. Print 1981)

(Proponents of increased marital deductions argue that there

should be no tax imposed on transfers between spouses since a

husband and wife should be treated as a single economic unit

for estate and gift tax purposes, as they generally are for income

tax purposes); Revenue Act of 1948, S. Rep. No. 80-1013, at 27

(1948), reprinted in 1948 U.S.C.C.A.N. 1163, 1189 (S. Rep. No.80-1013) (The most obvious instance of the failure to attain

equalization results from the use of life tenancies in the

common-law States. In this situation the husband transfers or

bequeaths to his wife a life estate, with remainder over to the

children. At his death the whole of the estate is taxed, but at the

wifes death there is no tax on the cessation of her life estate. On

the other hand in a community-property State, the husband

may not by his will dispose of his wifes interest in community

property.).16

For example, at the time of the Economic Recovery Tax Act

of 1981, which established the current unlimited marital estate

tax deduction, Blacks Law Dictionary defined Marriage asLegal union of one man and one woman as husband and wife.

Blacks Law Dictionary 876 (5th ed. 1979); see also Websters

Third New International Dictionary 1384 (1976) (The state of


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15

Without directly addressing the understanding ofpre-DOMA law articulated by Congress and by the

dissent, or even considering the pre-DOMA meaning

of the marital estate tax deduction, the majority

below simply assumed that federal law would auto-

matically recognize any marriage valid under state

law. The explanation for this assumption apparently

lies in the following sentence from the courts opinion:

To the extent that there has ever been uniform

or consistent rule [sic] in federal law concerning

marriage, it is that marriage is a virtually exclusive

province of the States. Supp. App. 25a (quotingSosna v. Iowa, 419 U.S. 393, 404 (1975)).

There is a logical chasm between this general

assertion and the conclusion that federal law uses the

term marriage as an empty vessel into which the

states can pour any relationship they please. The

latter is not, and never has been, true. If it were the

case, it would be irrational for Congress to condition

any benefits on the existence of a marital relation-

ship because one states definition of marriage might

be completely distinct from anothers. Accordingly,interpreting the term marriage (and related terms)

in federal law requires some understanding of the

meaning of that term apart from state law.17

The evidence discussed above strongly suggests

that Congress was correct in concluding that the pre-

DOMA federal definition of marriage did not extend

to same-sex unions. To be sure, it may be impossible

being united to a person of the opposite sex as husband or

wife); The American Heritage Dictionary 768 (2d ed. 1985)(The legal union of a man and woman as husband and wife).

17Seesupra, note 12.


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16

to answer with certainty the question of how courtswould have interpreted every federal statute in the

absence of DOMA, given that no state had recognized

same-sex marriage at the time of DOMAs enactment.

But avoiding such uncertainty is one of the reasons

that Congress was fully justified in enacting Section

3 of DOMA.

(B). Section 3 of DOMA promotes a significant

government interest in uniformity and certainty in

the application of federal law. As the Second Circuit

recognized, the legislative history of DOMA reflectsthat Section 3 was designed in significant part to

ensure uniformity of eligibility for federal benefits

among the states. Supp. App. 24a-25a & n.5. For

example, Senator Ashcroft explained that unless we

have a Federal definition of what marriage is, a

variety of States around the country could define

marriage differently [and] people in different States

would have different eligibility to receive Federal

benefits, which would be inappropriate. 142 Cong.

Rec. 22459 (1996).

The pendency of the Baehr litigation in Hawaii

confronted Congress with the realistic possibility, for

the first time, that same-sex couples would seek

federal benefits on the ground that they were mar-

ried under state law. Indeed, the uncontradicted

evidence presented to Congress demonstrated that

organized litigants such as LLDEF planned to use

the recognition of same-sex marriage in a single

state, such as Hawaii, as a means of obtaining federal

benefits for same-sex couples nationwide. House

Hearing at 15. This would be accomplished by out-of-state couples traveling to Hawaii, getting married

and returning to their home states, where they would


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17

seek to be considered as married for purposes ofboth state and federal law.

Absent DOMA, the outcome of these cases would

depend on (1) whether a court construed the particu-

lar federal statute to authorize benefits for same-sex

couples married under state law and (2) whether the

court determined that the couple in question was

married under state law. Assuming that the court

answered the first question in the affirmative

(contrary to congressional intent), it would face the

second.If there was one thing upon which all of the legal

experts who testified before Congress agreed, it was

that determining whether State A would recognize a

same-sex marriage performed in State B would be a

difficult, uncertain and unpredictable task.See supra

note 7. It would in all likelihood depend on whether

State A had a strong public policy against same-sex

marriages, which in turn would depend on a variety

of factors that might differ from state to state. There

was a virtual certainty of varying and inconsistent

results, which would only multiply if both state and

federal courts were simultaneously ruling on the

issues. Results would likely vary among and within

states, among judges and court systems, between

types of jurisdictions and laws (state or federal) and

among different statutory schemes.

It was not only opponents of same-sex marriage

who recognized the chaotic and inequitable situation

that would result. In a memorandum entered into the

record during a May 15, 1996 hearing before the

House Judiciary Subcommittee on the Constitution,

LLDEF described how state-by-state adjudication of


24/36

18

these issues would give rise to a legal and practicalnightmare that would create enormous pressure for

a uniform national solution. House Hearing at 19. By

enacting DOMA, Congress sought to mitigate this

national confusion by clarifying the definition of

marriage for purposes of federal law, while preserv-

ing the authority of states to make determinations

with regard to their own laws. By preserving the

status quo (non-recognition of same-sex marriage)

with respect to federal benefits, Congress reduced the

incentives for marriage tourism, forestalled the use

of federal courts for LLDEFs litigation strategy, andaverted the legal and practical nightmare that

would result from disparate treatment of similarly

situated same-sex couples for purposes of federal law.

The Second Circuit described Congresss interest in

uniform treatment as suspicious because Congress

has normally deferred to state law with regard to the

determination of marriage and other domestic

relations issues. Supp. App. 24a. The courts view is

flawed for several reasons. First, it fails to distin-

guish between incorporating state law with respect tothe legality of a particular relationship, and deferring

to state law with respect to the ordinary meaning of a

term used in federal law. The ordinary meaning of

the term marriage, when DOMA was enacted and

before, was the [l]egal union of one man and one

woman as husband and wife.See supra note 16. The

fact that Congress normally looks to state law to

determine whether a particular union of a man and a

woman is legal does not mean that it looks to state


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19

law to determine whether marriage means oneman and one woman in the first place.18

Second, the touchstone for interpretation of federal

statutes is congressional intent, not state law. As this

Court explained inLyeth v. Hoey:

In dealing with the meaning and application of

an act of Congress enacted in the exercise of its

plenary power under the Constitution to tax

income and to grant exemptions from that tax, it

is the will of Congress which controls, and the

expression of its will, in the absence of languageevidencing a different purpose, should be inter-

preted so as to give a uniform application to a

nationwide scheme of taxation. Congress estab-

lishes its own criteria and the state law may

control only when the federal taxing act, by

express language or necessary implication,

makes its operation dependent upon state law.

305 U.S. 188, 194 (1938) (quotingBurnet v. Harmel,

287 U.S. 103, 110 (1932) (internal citation omitted)).

As theLyeth Court suggests, there is nothing novel

or unprecedented about Congress preferring uni-

formity to deference to state law. Indeed, the original

purpose of the marital estate tax deduction, adopted

in the Revenue Act of 1948, was to equalize treat-

ment of married couples in common law and

community property states.See Revenue Act of 1948,

18This distinguishes the case of same-sex marriage from other

examples pointed to by the court of appeals, such as minimum

age and consanguinity. Supp. App. 25a.The latter involve onlythe question of whether a relationship that otherwise falls

within the ordinary meaning of marriage constitutes a legal

union.


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20

Pub. L. No. 80-471, 62 Stat. 110 (1948). As the SenateCommittee on Finance explained, the differences

between marital property rights in these types of

states resulted in geographic inequalities in the

effect of the estate and gift taxes. S. Rep. No. 80-

1013, at 26. While the surviving spouse in a commu-

nity property state escaped taxation on one-half of

the community property, the surviving spouse in a

common law property state generally was taxed on

the full amount of the estate. The Revenue Act of

1948 provided a marital deduction up to one-half

the value of the common law (but not community)property, thereby ensuring that differences in state

law would not result in radically different federal law

treatment of similarly-situated spouses.

Finally, in dismissing Congresss interest in pre-

serving the stability and uniformity of federal law,

the Second Circuit failed to take into account the

unique circumstances addressed by DOMA. Congress

was faced with an organized and unprecedented

effort to redefine marriage in a manner, as the court

acknowledged, unknown to history and tradition.Supp. App. 31a. This situation was not comparable in

any way to the minor variations among states with

respect to age or consanguinity. Moreover, the courts

assertion, Supp. App. 26a, that it would have been

simpler for Congress to have asked whether a

couple was married under the law of the state of

domicile, rather than maintain a uniform federal

rule with regard to same-sex marriage, not only

improperly substitutes its policy judgment for that of


27/36

21

Congress, but is contradicted by the legislative recordand the very facts of the case at bar.19

(C). Section 3 of DOMA protects the ability of

states to preserve traditional marriage. The court

below implied that Section 3 of DOMA interferes

with the autonomy of states with regard to domestic

relations, terming it an unprecedented breach of

longstanding deference to federalism. Supp. App.

26a. At the same time (and somewhat inconsistently),

19

In the present case, Ms. Windsor claims the marital estatetax deduction by virtue of her 2007 marriage in Canada to Thea

Clara Spyer. She was a resident of New York at the time of

Ms. Spyers death in 2009. Although New York did not permit

same-sex couples to marry prior to 2011, the Second Circuit

predicted that the New York Court of Appeals would ulti-

mately hold out-of-state same-sex marriages to be recognized in

2009 under New York law, an issue that the New York Court of

Appeals expressly declined to reach in Godfrey v. Spano, 13

N.Y.3d 358 (2009). The Second Circuit refused to exercise the

option of certifying the question to the New York Court of

Appeals, noting that court had preferred the issue be resolved

by the New York legislature and stating [w]e hesitate to serve

up to the Court of Appeals a question that it is reluctant toanswer for a prudential reason. Supp. App. 6a.

It is difficult to imagine a set of facts more clearly rebutting

the Second Circuits claim that it would be simpler to apply

the law of the state of domicile than to apply Section 3 of

DOMA. It is also noteworthy that, regardless of whether the

Second Circuit correctly predicted New York law in this

regard, its decision awards a federal benefit to Ms. Windsor that

would not be available to the same-sex couples in the great

majority of U.S. states, even if they had been married in Canada

or another jurisdiction that licenses such marriages, or even to

most same-sex couples in New York itself. It is particularly

noteworthy that Ms. Windsor would treated more favorablythan the surviving member of civil unions that have been recog-

nized, as an alternative to marriage, in a number of states. See,

e.g., Haw. Rev. Stat Ann. 572B (West 2013).


28/36

22

it contended that DOMA could not advance a govern-ment interest in preserving traditional marriage

because the decision whether same-sex couples may

marry is left to the states.Id. at 29a.

Both of these observations are incorrect. DOMA

does not interfere with the authority of the states

with respect to licensing and recognizing marriage.

To the contrary, Section 2 of DOMA preserves and

protects the autonomy of each state in that regard.

Section 3 of DOMA, however, advances the objec-

tive of preserving traditional marriage, not byinterfering with state authority, but by removing an

incentive that might otherwise encourage efforts to

change state law. The prospect of obtaining numer-

ous federal benefits for same-sex couples could be a

tremendous weapon in the arsenal of those who

would seek to gain recognition of same-sex marriage

at the state level. It would be particularly tempting

for courts to recognize same-sex marriage in order to

award federal benefits to sympathetic plaintiffs.

In this way, Section 3 functions much like theoriginal marriage estate tax deduction enacted by

Congress. Congress recognized that the prospect of

obtaining federal tax benefits (including both income

and estate/gift taxes) was driving states to shift from

common law to community property, despite the

otherwise serious downside to making this shift:

The adoption of community property has been

advocated widely in spite of a growing awareness

of the substantial differences between commu-

nity property and common law which make atransition from one system to the other ex-

tremely difficult. It is now recognized that this


29/36

23

transition will be a period of extreme confusionduring which the courts, the administrative offi-

cials and the legislatures will be working out the

detailed application of a new and strange system

of property law. Nevertheless, many responsible

State officials have reached the conclusion that

the difference between the impact of the Federal

income tax as it applies in community-property

and common-law jurisdictions is so great that the

use of community property cannot be avoided.

S. Rep. No. 80-1013.Congresss concerns regarding state adoption of

community property regimes were, of course, not the

same as its concerns regarding state recognition of

same-sex marriage, but it was entirely rational and

legitimate for Congress in both cases to remove an

unwarranted federal incentive for states to change

their domestic-relations law.

By enacting Section 3 of DOMA, Congress not only

protected the federal treasury, but it ensured that the

federal treasury would not be used as an incentive toundermine the traditional state law of marriage.

II.Support for Traditional Marriage is Not

Unconstitutional Animus

Although the Second Circuit avoided any direct

attack on the motivations of individual legislators

who supported DOMA, the United States maintained

below that the statute was motivated in significant

part by disapproval of gay and lesbian people and

their intimate and family relations and that there-fore Section 3 classifies gay and lesbian individuals

not to further a proper legislative end but to make


30/36

24

them unequal to everyone else. Br. for United States37, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug.

10, 2012), ECF 120 (quotingRomer v. Evans, 517

U.S. 620, 635 (1996)). The United States does not

explain whether this alleged motivation can be at-

tributed to President Clinton, who signed the law, or

the current Vice President of the United States, who

as a U.S. Senator voted for it.

The position of the United States, if accepted,

would mean that it is permissible for the executive

branch to disavow the constitutionality of a statutebased on pejorative characterizations of what moti-

vated certain legislators (or motivated them in

significant part), despite the fact that the Depart-

ment of Justice contemporaneously advised the Con-

gress that the statute was clearly constitutional and

vigorously defended the statutes constitutionality for

more than a decade after enactment. Amici note the

troubling implications of this position for separation

of powers, comity between the branches, and the

ability of Congress to assess the constitutionality of

proposed legislation.

Fortunately, the position of the United States is

without merit.20

20

Another example of this mode of analysis is the majority

opinion in Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012),

in which the Ninth Circuit held that Proposition 8, an

amendment to the California Constitution adopted by a vote of

the people in 2008, violated the Equal Protection Clause of the

Fourteenth Amendment by withdrawing from same-sex couples

the right to be married, a right that had first been afforded to

such couples by a decision of the California Supreme Courtearlier in 2008. See also In re Marriage Cases, 183 P.3d 384

(Cal. 2008). The opinion discusses evidence that Proposition 8

was born of disapproval of gays and lesbians, Perry, 671 F.3d

In the first place, this Courts ani-


31/36

25

mus jurisprudence does not support invalidating anotherwise constitutional statute based on what may

have motivated individual legislators. In U.S. Dept

of Agric. v. Moreno, 413 U.S. 528 (1973), which

involved an amendment to the Food Stamp Act

withdrawing benefits from otherwise eligible indi-

viduals if they lived in a household with unrelated

individuals, the Court first noted that the provision

was clearly irrelevant to the purposes stated in the

original Act itself (e.g., to provide a market for

agricultural surpluses and to satisfy the nutritional

requirements of food stamp recipients). Id. at 534.Noting that there was little legislative history to

illuminate the purposes of the amendment, this

Court observed that the only purpose reflected in the

history was that the amendment was intended to

prevent so-called hippies and hippie communes

from participating in the food stamp program. Id.

This Court held that [t]he challenged classification

clearly cannot be sustained by reference to this

congressional purpose [because] * * * a bare congres-

sional desire to harm a politically unpopular groupcannot constitute a legitimate governmental inter-

est.Id. at 534-35.Moreno does not suggest that the

law in question is invalid because it was allegedly

at 1094-95. However, as the dissent in that case points out, this

Courts precedent in Romer v. Evans, 517 U.S. 620 (1996) does

not support the conclusion that evidence of animus, standing

alone, justifies a finding of unconstitutionality. Perry, 671 F.3d

at 1104 (Smith, J., concurring in part and dissenting in part)

(Romer was a case where the only basis for the measure at

issue was animus. However, in a case where the measure atissue was prompted both by animus and by some independent

legitimate purpose, the measure may still be constitutionally

valid.).


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26

motivated by disapproval or dislike of hippies. Alaw furthering a legitimate governmental interest,

such as a law making it a crime to use marijuana,

would not be unconstitutional even if some or all

members who voted for it expressed disapproval of

hippies as their reason for doing so. Moreno merely

stands for the proposition that such views alone do

not constitute a legitimate government purpose or

interest.

Subsequent cases are to the same effect. InRomer,

this Court struck down a Colorado constitutionalamendment which (1) repealed existing laws classify-

ing gays and lesbians as a group protected from

discrimination and (2) prohibited any future legisla-

tive, executive or judicial action to provide such

protection at any level of state or local government.

517 U.S. at 624. Although the Court noted that laws

of the kind now before us raise the inevitable

inference that the disadvantage imposed is born of

animosity toward the class of persons affected, id.

at 634, this inference was based on the structure of

the amendment and the absence of any identifiablelegitimate purpose or discrete objective. Id. at 635.

It was not based on a subjective evaluation of the

motives of the legislative actors, in that case the

people of Colorado. Moreover, the Court did not sug-

gest that an otherwise constitutional law would be

invalidated by improper motives of some legislators.

This distinction is of critical importance because

judicial scrutiny of legislative motives is fraught with

peril.21

21See Fleming v. Nestor, 363 U.S. 603, 617 (1960) (Judicial

inquiries into Congressional motives are at best a hazardous

Evaluating constitutionality based on assess-


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27

ment of legislative motives would mean that thesame law could be constitutional or unconstitutional,

depending on the particular legislature that enacted

it. For example, in the case of DOMA, there can be no

doubt that the overwhelming majority of Congress

reasonably believed that the pre-existing federal

definition of marriage did not, and was not intended

to, encompass same-sex marriage. If constitutionality

were determined by subjective motivation, the pre-

existing definition of marriage would clearly be

constitutional (since there is no suggestion that

Congress enacted that definition with any motivesrelated to same-sex relationships), yet DOMAs re-

affirmation of the same definition might not be. Such

an approach would be utterly at odds with our

constitutional traditions.22

Moreover, judicial scrutiny of legislative motives

inevitably raises insoluble problems of proof. A court

lacks information to determine the true motives

of particular legislators, much less to determine

whether to impute such motives to the legislature as

a whole. As Chief Justice Marshall noted inFletcherv. Peck, 10 U.S. (6 Cranch) 87, 131 (1810), a court

cannot declare a legislative act to be a nullity, in

consequence of the impure motives which influenced

certain members of the legislature which passed the

law.

matter, and when that inquiry seeks to go behind objective

manifestations it becomes a dubious affair indeed.).22

Justice Story explained that it would be novel and absurd

to suggest that the same act passed by one legislature will be

constitutional, and by another unconstitutional, depending on

the motives for enacting it. 2 Joseph Story, Commentaries on

the Constitution of the United States 533, 1086 (1st ed.1833).


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28

Judicial review of legislative motives also raisesserious separation of powers problems. Judicial

psychoanalysis of legislative motives, to use Justice

Cardozos phrase, is a highly subjective exercise,

which threatens needless friction between the

branches.23

Furthermore, with respect to DOMA in particular,there is no basis to equate support for the traditional

definition of marriage with unconstitutional animus

or a bare congressional desire to harm a politically

unpopular group. As Justice OConnor noted in her

concurrence in Lawrence v. Texas, other reasons

exist to promote the institution of marriage beyond

mere moral disapproval of an excluded group.

Scouring the congressional record for

sound-bites to divine and disparage the motives of

individual legislators also chills the freedom of

legislative speech that is the hallmark of robust

democratic debate.

24It is

simply not irrational or bigoted to oppose the re-

definition of marriage in a manner unknown to

history and tradition, to use the language of the

court below.25

23See United States v. Constantine, 296 U.S. 287, 298-99

(1935) (Cardozo, J., dissenting).

To the contrary, when faced with aproposed fundamental redefinition of the institution

of marriage, it would be irrational not to consider

24539 U.S. 558, 585 (2003) (OConnor, J., concurring); see also

Massachusetts v. U.S. Dept of HHS, 682 F.3d 1, 16 (1st Cir.

2012) (Traditions are the glue that holds society together,

and many of our own traditions rest largely on belief and

familiaritynot on benefits firmly provable in court. The desireto retain them is strong and can be honestly held.).

25Supp. App. 31a.


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29

American societys historical view of a marriage asbeing between a man and a woman.26

The fact that DOMA passed both houses of Con-

gress with overwhelming support across the political

spectrum, and was signed by into law by President

Clinton, further undercuts any attempt to character-

ize it as the result of unconstitutional animus.

27

Many DOMA supporters were on record as opposing

discrimination against gays and lesbians. See, e.g.,

142 Cong. Rec. 22452 (1996) (Sen. Mikulski) (My

support for the Defense of Marriage Act does notlessen in any way my commitment to fighting for fair

treatment for gays and lesbians in the workplace.).

These included, for example, 16 original Senate co-

sponsors of S.932, which was introduced in 1995 to

ban employment discrimination on the basis of sexual

orientation.28

Finally, as Judge Straub pointed out below, if

states may use the traditional definition of marriage

for state purposes without violating equal protection,

it necessarily follows that Congress may define

marriage the same way for federal purposes without

26Supp. App. 34a (Straub, J., dissenting in part and concur-

ring in part).27

As the First Circuit has noted with respect to DOMA,

selected comments by a few individual legislators . . . cannot

taint a statute supported by large majorities in both Houses and

signed by President Clinton.Massachusetts, 682 F.3d at 16.28See Employment Nondiscrimination Act of 1995, S. 932,

104th Cong. The primary sponsor of S. 932, Senator Jeffords,

voted for DOMA, as did 15 co-sponsors (Senators Bingaman,Bradley, Chafee, Dodd, Glenn, Harkin, Kohl, Lautenberg,

Leahy, Levin, Lieberman, Mikulski, Murray, Sarbanes and

Wellstone).See 142 Cong. Rec. 22467 (1996).


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30

violating equal protection. Supp. App. 45a. It cer-tainly cannot represent unconstitutional animus to

wish to define marriage, for federal law purposes, in

this constitutionally permissible manner.

It is manifest that the traditional definition of

marriage, which was overwhelmingly supported by

bipartisan majorities in 1996, is more controversial

today, both among the public and their elected rep-

resentatives. This, however, is not a reason to end

the democratic debate by asking the courts to stigma-

tize the motives of one side. To the contrary, as JudgeStraub aptly noted in his dissent, [c]ourts should not

intervene where there is a robust political debate

because doing so poisons the political well, imposing

a destructive anti-majoritarian constitutional ruling

on a vigorous debate. Supp. App. 83a.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

MICHAEL L.STERNCounsel of Record

8529 Century Oak CourtFairfax Station, Va. 22039(703) [email protected]

Counsel for Amici Curiae

January 29, 2013

Documents

12-307 Brief for United States Senators Orrin G. Hatch, Saxby Chambliss, Et Al